No. 2--00--0443	

________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

________________________________________________________________

JANICE K. IRWIN,	)	Appeal from the Circuit Court

	)	of De Kalb County.

	Plaintiff-Appellee,	)

	)	No.	97--L--80

v.	)	No.	97--L--80

	)

ROBERT P. McMILLAN,	)	Honorable

	)	Kurt P. Klein,

	Defendant-Appellant.	)	Judge, Presiding.

________________________________________________________________

	JUSTICE RAPP delivered the opinion of the court:

	Plaintiff, Janice K. Irwin, filed a complaint against

defendant, Robert P. McMillan, claiming that on September 2, 1995,

in Sycamore defendant negligently drove his car into the back of

plaintiff's car and injured plaintiff.  Following a jury trial,

plaintiff was awarded $23,685.86 in damages, and plaintiff moved 

for an award of costs totaling $5,514.92.  The trial court granted

the motion.  Defendant appealed, arguing that the trial court erred

when it taxed against him as costs various witness fees and

evidence deposition charges.  We reverse in part and vacate in

part.

	According to the filed bystander's report, the parties

stipulated that Dr. Craig Popp, plaintiff's treating orthopedic

surgeon, was not available to testify at the trial.  Thus, Dr.

Popp's evidence deposition was introduced during plaintiff's case 

in chief.  Plaintiff also called Dr. John Kelly, plaintiff's

treating family physician, and Ms. Lynn Batalden, plaintiff's treating physical therapist.  Both Dr. Kelly and Ms. Batalden

testified at the trial about their treatment of plaintiff and their

opinions regarding plaintiff's physical condition.

	After judgment was entered on the jury's verdict, the trial

court awarded costs based on Perkins v. Harris, 308 Ill. App. 3d 1076 (1999).  Defendant did not object to the following imposed

costs:

	"DeKalb County Circuit Clerk Filing Fee:	$121.00

	DeKalb County Sheriff: Service of Summons:	 $28.00

	Harold Hardy: Subpoena Witness Fee:		 $20.00

	Lynn Batalden: Subpoena Witness Fee:		 $20.00

	Janson Reporting: Evidence Deposition

	Transcript of Deposition of Dr. Popp:		$288.45."

However, defendant did challenge the following charges:

	"Dr. Craig Popp: 

	Fee for Evidence Deposition:				$750.00

	Caroline Communications Video Recording

	Of Deposition of Dr. Popp:				$387.47

	Dr. John Kelly:  Witness Fee:			   $3,000.00

	Lynn Batalden: Witness Fee:				$900.00."

	After the trial court entered its order awarding costs, this

court decided Wiegman v. Hitch-Inn Post of Libertyville, Inc., 308 Ill. App. 3d 789 (1999).  Defendant moved to reconsider the trial

court's award of costs based on Wiegman.  At the hearing on the motion to reconsider, defendant argued, based on Wiegman, that each party must bear its own costs for litigation.  Therefore, defendant

claimed that the trial court could not tax as costs the witness

fees that Dr. Popp, Dr. Kelly, and Ms. Batalden charged.  Plaintiff argued that Wiegman was distinguishable because Wiegman involved a retained expert and not a treating physician, as in this cause and Perkins.  The trial court denied the motion to reconsider, and defendant filed this timely appeal.

	I.  WITNESS FEES FOR DR. POPP, DR. KELLY, AND MS. BATALDEN

	Defendant first argues that the trial court erred when it

taxed as costs the witness fees that Dr. Popp, Dr. Kelly, and Ms.

Batalden charged.  Defendant claims that the fees were improperly

assessed against defendant because no statute or supreme court rule

requires defendant to pay witness fees for treating health care

professionals.  Plaintiff argues that the fees were properly taxed

because section 5--108 of the Code of Civil Procedure (Code) (735

ILCS 5/5--108 (West 1998)) allows the court to award a plaintiff

certain costs if judgment is entered for the plaintiff.  Plaintiff

then claims that because neither the statutes nor the supreme court

rules define "costs," this court should look to the cases that have

concluded that witness fees are included in the term "costs."

	At common law, a successful litigant could not recover the

costs he incurred in pursuing his case.  Falkenthal v. Public Building Comm'n, 111 Ill. App. 3d 703, 710 (1982).  However, a prevailing party currently may recover costs if a statute or

supreme court rule so provides.  Gleason v. Carter, 212 Ill. App. 3d 206, 208 (1991).  A party recovering costs under a statute or supreme court rule is limited to the costs the statute or rule

specifically allows, and a trial court's judgment awarding costs

will not be reversed on appeal absent an abuse of discretion. 

Gleason, 212 Ill. App. 3d at 208-09.

	Section 5--108 of the Code provides that a prevailing

plaintiff in an action for damages personal to the plaintiff can

recover certain "costs," but the statute fails to define "costs" or

delineate what costs are recoverable.  735 ILCS 5/5--108 (West

1998); Wiegman, 308 Ill. App. 3d at 804.  Nevertheless, our supreme court has defined costs as the "allowances in the nature of

incidental damages awarded by law to reimburse the prevailing

party, to some extent at least, for the expenses necessarily

incurred in the assertion of [the party's] rights in court." 

Galowich v. Beech Aircraft Corp., 92 Ill. 2d 157, 165-66 (1982) (Galowich I).

	A.  Witness Fee for Dr. Popp's Evidence Deposition	

	The first issue we address is whether the fee Dr. Popp charged

for the taking of his evidence deposition can be taxed against

defendant.  In Galowich I, our supreme court concluded that Supreme Court Rule 208(d) (134 Ill. 2d R. 208(d)), which addressed

discovery depositions, authorized trial courts to tax as costs the

expenses of those depositions that were "necessarily used at

trial."  Galowich I, 92 Ill. 2d at 166.  The court noted that "a discovery deposition would become a necessity *** when a crucial

witness died or disappeared before trial." Galowich I, 92 Ill. 2d at 166.  Thus, "necessarily used at trial" has been interpreted to

mean "indispensable" to the trial, as when the witness dies or

disappears.  Wiegman, 308 Ill. App. 3d at 804.    

	The precise issue raised here was addressed in two recent

Fifth District cases.  First, in Perkins the appellate court concluded that the prevailing plaintiff could recover the witness fee that the plaintiff's treating doctor charged for the taking of

the doctor's videotaped deposition.  Perkins, 308 Ill. App. 3d at 1084.  The court reasoned that the costs were recoverable based on

an interpretation of Rule 208 and Supreme Court Rule 204(c) (166

Ill. 2d R. 204(c)).  Perkins, 308 Ill. App. 3d at 1084.  

	In Woolverton v. McCracken, Nos. 5--99--0237 & 5--99--0573 cons. (April 25, 2001), the Fifth District more fully developed its

holding in Perkins.  In Woolverton, as in Perkins, the court relied on Rule 204(c) to conclude that the prevailing plaintiff may

recover the fee that a treating doctor charged to testify in an

evidence deposition.  Woolverton noted that Rule 204(c) addressed a doctor's discovery deposition, not evidence deposition, but

concluded that the spirit of Rule 204 revealed a strong desire to

compensate doctors for the time they spent being deposed. 

Woolverton, slip op. at 4.  

	Although we agree with the policy behind the rule, we note

that Rule 204(c) does not require a losing defendant to pay the

doctor's fees.  Rather, Rule 204(c), when read in conjunction with

Rule 208, provides that the party at whose instance a doctor's

discovery deposition is taken bears the burden of paying the

doctor's fees.  166 Ill. 2d R. 204(c); Woolverton, slip op. at 4-5.  Here, the record revealed that the evidence deposition was "being

taken and recorded on behalf of [plaintiff]."  Thus, plaintiff

should be held responsible for Dr. Popp's witness fee.

	Nevertheless, Woolverton did not rely solely on Rule 204(c).  Rather, after discussing Rule 204(c), Woolverton noted that Rule 208(d) authorized the trial court to tax a losing defendant for certain deposition expenses.  Woolverton, slip op. at 4-5.  Under Rule 208, the trial court may tax as costs the expense of those

depositions that were "necessarily used at trial" or, in other

words, "indispensable" to the trial.  Woolverton, slip op. at 5-6.  The issue then becomes whether the evidence deposition of a

plaintiff's treating physician can be taxed against the defendant

when the parties stipulated that the treating doctor was not

available for trial.  We determine that such costs cannot be

assessed against defendant. 

	We find support for our position in Physicians Insurance Exchange v. Jennings, 316 Ill. App. 3d 443 (2000).  In Jennings, the parties agreed that the deposition of six witnesses could be

used in the stipulated bench trial.  Jennings, 316 Ill. App. 3d at 463.  The court concluded that the expenses incurred in deposing

the six witnesses could not be taxed against the counterdefendant

because the depositions were not "indispensable."  Jennings, 316 Ill. App. 3d at 463.  In reaching this conclusion, the court noted

that if the six witnesses would have testified at the trial, the

counterplaintiff could not recover the deposition costs for those

witnesses.  Jennings, 316 Ill. App. 3d at 448, 463.

	Although Jennings states in dicta that a videotaped deposition is different from the situation presented in that case, and thus a

prevailing plaintiff may recover a treating doctor's fees for

testifying in an evidence deposition, we conclude that any

variation between the facts and conclusion reached in Jennings and this cause is a distinction without a difference.  Specifically, as

in Jennings, defendant would not bear the costs of Dr. Popp's fee if Dr. Popp testified at the trial for plaintiff.  Therefore, the

mere fact that Dr. Popp did not personally appear at the trial

cannot somehow change the fact that plaintiff is responsible for

paying the witness fees that his own treating doctor charges. 

Plaintiff claims that defendant should be assessed the costs of Dr.

Popp's witness fee because the parties stipulated that Dr. Popp was

unavailable for trial.  However, the unavailability of a witness

does not rise to the level of "indispensable."  See Boyle v. Manley, 263 Ill. App. 3d 200, 206 (1994)(recognizing that a witness's deposition is indispensable to the trial when the witness

has died or disappeared); Galowich v. Beech Aircraft Corp., 209 Ill. App. 3d 128, 142 (1991) (Galowich II) (implying that "necessary" or "indispensable" requires something more than using

the deposition at trial because Galowich I's examples of "necessary" use at trial included only the narrow situation where

a crucial witness dies or disappears before trial); Cleveland Wrecking Co. v. Central National Bank, 216 Ill. App. 3d 279, 296 (1991) (concluding that deposition costs of two witnesses were not

indispensable because the witnesses had not died or disappeared).

	We further must note that a blanket rule requiring the

defendant to pay the plaintiff's treating doctor's fee for

testifying in an evidence deposition would violate the "necessary"-

or-"indispensable"-use-at-trial test because under Supreme Court

Rule 212(b) (134 Ill. 2d R. 212(b)) a doctor's evidence deposition

may be taken and presented to the court regardless of the doctor's

availability to testify at trial.  Specifically, Rule 212(b)

provides that "[t]he evidence deposition of a physician or surgeon may be introduced in evidence at trial on the motion of either

party regardless of the availability of the deponent[.]" (Emphasis added.) 134 Ill. 2d R. 212(b).  Therefore, under Rule 212(b) the

use of a doctor's evidence deposition at trial has nothing to do

with the "indispensable" or "necessary" use of the evidence

deposition or even the availability of the doctor.  Based on the

foregoing, we determine that the part of the trial court's judgment

taxing defendant $750  for Dr. Popp's witness fee must be reversed.

	B.  Witness Fees for Dr. Kelly and Ms. Batalden

	  The next issue we resolve is whether the trial court may tax

as costs the fees two health care professionals  charged to testify

in plaintiff's case in chief.  Defendant argues that he cannot be

assessed these fees because no supreme court rule or statute

authorizes the trial court to impose these costs.  Plaintiff argues

that under section 5--108 of the Code Dr. Kelly's and Ms.

Batalden's witness fees were properly assessed against defendant. 

Plaintiff also claims that section 2--1101 of the Code (735 ILCS

5/2--1101 (West 1998)) allows a treating medical professional to

recover more than the mileage and per diem fee provided for in section 4.3(a) of the Circuit Courts Act (Act) (705 ILCS

35/4.3(a)(West 1998)).  

	As noted above, section 5--108 of the Code allows a court to

tax certain costs against a losing defendant; however, the statute

does not define the term "costs."  Plaintiff suggests that section

2--1101 of the Code gives the trial court the authority to tax

against defendant the witness fees of two health care professionals

who treated plaintiff and testified in plaintiff's case in chief.  Section 2--1101 of the Code provides that, when an expert is

subpoenaed to testify at trial and a dispute arises about the

expert's fee, the trial court may conduct a hearing to determine

the reasonable fee that should be paid to the expert.  We do not

believe that section 2--1101 of the Code applies to this cause.

	Plaintiff next argues that section 4.3 of the Act requires

defendant to pay Dr. Kelly's witness fee because defendant

subpoenaed Dr. Kelly.  Plaintiff argues that under the Act

defendant should be held responsible for Dr. Kelly's witness fee

even though Dr. Kelly testified for plaintiff in plaintiff's case

in chief and did not testify for defendant.  We determine that

section 4.3 of the Act does not require defendant to pay Dr.

Kelly's witness fee.  Under section 4.3(a) of the Act, a party who

subpoenas a witness is required to pay the witness $20 per day and

$0.20 for each mile that the witness drives to and from the trial. 

This section does not require the subpoenaing party to pay the

witness any additional costs, such as witness fees, which the

subpoenaed witness may seek.  See Clayton v. Ingalls Memorial Hospital, 311 Ill. App. 3d 135, 138-39 (2000) (analogizing the subpoena provisions of the Workers' Compensation Act (820 ILCS

305 /16 (West 1996)) to section 4.3(a) of the Act and concluding, as

under the Act, that a party subpoenaing a witness does not have to

pay that witness any costs in addition to mileage and per diem fees).  

	The parties have failed to cite any other statute or rule that

allows a trial court to tax as costs the fees a witness charges for

appearing and testifying in court, and our own research has failed to uncover any such authority.  Therefore, we conclude that the

part of the trial court's judgment awarding plaintiff $3,000 for

Dr. Kelly's witness fee and $900 for Ms. Batalden's witness fee

must be reversed.

	II. VIDEOTAPE AND TRANSCRIPTION FEE FOR DR. POPP'S 

	EVIDENCE DEPOSITION

	Defendant's final argument is that the trial court erred when

it taxed defendant for both videotaping and transcribing Dr. Popp's

evidence deposition.  Defendant claims that he should not be taxed

for either videotaping or transcribing Dr. Popp's evidence

deposition because the deposition was not "necessary" or

"indispensable" to the trial.  In the alternative, defendant argues

that the court could assess only costs for either videotaping or

transcribing the evidence deposition.  Defendant claims that

Supreme Court Rule 206(g)(5) (166 Ill. 2d R. 206(g)(5)), when read

in conjunction with Rule 208(b) (134 Ill. 2d R. 208(b)), authorizes

the trial court to assess costs against a losing defendant for

either the cost of recording the videotaped evidence deposition or transcribing it, depending on which version of the evidence

deposition was used at trial.  Plaintiff argues that this court

should follow Perkins, which concluded that both the cost of videotaping and transcribing an evidence deposition may be taxed

against the losing defendant.

	Under section 1--105 of the Code (735 ILCS 5/1--105 (West

1998)), our supreme court may make rules related to assessing

costs.  Rule 206 allows the trial court to assess costs for

videotaped depositions.  More specifically, the rule states that the party at whose instance  a deposition is videotaped shall bear

the costs that the video operator imposes and the fees for filing

the videotape. 166 Ill. 2d R. 206(g)(5).  Rule 206 also provides

that the rules governing the practice of and the procedures and

uses for depositions shall apply to evidence depositions.  166 Ill.

2d R. 206(g).  

	The same construction rules that apply to statutes apply to

supreme court rules.  Hill v. Joseph Behr & Sons, Inc., 293 Ill. App. 3d 814, 817 (1997).  When interpreting the supreme court

rules, we must ascertain and give effect to the supreme court's

intent.  Hill, 293 Ill. App. 3d at 817.  In determining the supreme court's intent, the reviewing court should first look to the

language of the rule and consider each part of the rule in relation

to the rest of the rule.  Hill, 293 Ill. App. 3d at 817.  The courts should also consider the reason and necessity for the rule,

the evil to be remedied, and the purpose of the rule.  Hill, 293 Ill. App. 3d at 817.  

	Here, according to the language of Rule 206, plaintiff should

pay the costs of videotaping Dr. Popp's evidence deposition because

plaintiff requested that Dr. Popp's evidence deposition be

videotaped.  More specifically, according to the record, Dr. Popp's

deposition was "being taken and recorded on behalf of [plaintiff]." 

	Nevertheless, as plaintiff indicates, Perkins concludes that  a trial court may assess costs of videotaping, editing, and

transcribing a videotaped evidence deposition if the deposition is 

"necessarily used at trial."  Perkins, 308 Ill. App. 3d at 1080.  As noted above, we do not believe that the mere use of an evidence deposition at trial means that the deposition is "necessary" or

"indispensable" to the trial and, thus, may be taxed against the

losing defendant.  Rather, necessity requires a determination that 

the deposition must be used because, for example, a crucial witness

has died or disappeared.  Wiegman, 308 Ill. App. 3d at 804.  This type of "necessity" was not present in this cause.  Thus, we

determine that the part of the trial court's order awarding

plaintiff $288.45 for transcribing Dr. Popp's evidence deposition

and $387.47 for videotaping the deposition must be reversed.

	For the above stated reasons, the judgment of the circuit court

of De Kalb County is reversed in part and we vacate that portion of

the judgment ordering defendant to pay various witness fees and

evidence deposition charges totaling $58,325.92 as costs.

	Reversed in part and vacated in part.

	BOWMAN and BYRNE, JJ., concur.